State Department’s Public Charge Rule Delayed

The new guidelines — originally set to take effect on Oct. 15 for immigration applicants abroad — are temporarily on hold

Oct 15, 2019

Stack of Files

IMPORTANT UPDATE — FEBRUARY 2, 2021: The new Department of Homeland Security (DHS) public charge rule, which initially took effect on Feb. 24, 2020, is currently in effect but under review by the Biden administration. The new Department of State (DOS) public charge policy that took effect the same day as the DHS rule was paused indefinitely on July 29, 2020. This page reflects those policies and will not be immediately updated according to the previous, longstanding guidance issued in 1999. Learn more.

The U.S. Department of State has delayed implementing its new public charge guidelines, which were set to go into effect on Oct. 15, until a new application form is approved.

The State Department has yet to make an official announcement on its Bureau of Consular Affairs website, where it typically posts public immigration-related updates. But CBS News immigration reporter Camilo Montoya-Galvez, a well-known immigration reporter who works for CBS News, today tweeted on Tuesday that a State Department official told him the agency would delay implementing the new rule.

The form, DS-5540 (officially called the “Public Charge Questionnaire”), was sent to the Office of Management and Budget (OMB) on Aug. 27 to be approved on an emergency basis, sidestepping the standard 60- and 30-day public comment periods that typically precede approval.

What is the status of both versions of the public charge rule?

The delay comes after the State Department issued an interim final rule in the Federal Register on Oct. 10, stating it would align its public charge guidelines with the U.S. Department of Homeland Security’s (DHS). (The State Department’s guidelines apply to green card and visa applicants filing from outside the United States, while DHS’ guidelines apply to those filing from within the United States.)

The DHS public charge rule has come under increased legal scrutiny in recent weeks, and its fate hangs in the balance after federal judges in five states temporarily blocked the policy, which was also slated to go into effect on Oct. 15. The State Department’s version of the rule — first amended in January 2018 before being merged with DHS’ on Oct. 11, 2019 — isn’t directly affected by the court decisions.

Both DHS and State Department rules will allow government officials to deny green cards and other visas to applicants they believe may be unable to financially support themselves once in the United States based on a number of factors, including age, income, English proficiency, and health.

What is the Form DS-5540?

While Form DS-5540 hasn’t yet been made public, it’s the State Department’s version of Form I-944 (officially called the “Declaration of Self-Sufficiency”), the DHS’s public charge questionnaire that asks applicants for information on several factors, including finances, health, and family size.

Immigration policy experts said the State Department’s interim final rule offers little guidance on how consular officers around the world should be evaluating applications based on the new public charge policy, and that the Department appears concerned about the volume of questions they will receive from consular officers as well as legal inquiries from attorneys. Boundless CEO Xiao Wang said the litany of changes to various forms, policies, and procedures related to the public charge rule signals a rushed job and that the State Department delay gives immigrant families some breathing room.

“This has been a week of immense uncertainty for those families looking to immigrate,” said Wang. “We’re happy that at least for now, families can rely on the previous way of doing things, and they can rest assured knowing that Boundless is actively tracking any future updates or changes.”

There’s still time to weigh in on the State Department’s public charge rule: The government will accept public comments on the proposal until Nov. 12.

Do you know your public charge risk factors?

Use the Boundless Public Charge Risk Estimator to find out, or learn more about the new rule.

If you need legal advice on these issues, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you.

Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.

To stay up to date on changes throughout the U.S. immigration system, follow Boundless on Twitter or Facebook.

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